Additional Briefing Invited on Binary Application of NHK
Last week I pointed out that the litigation timing factor
introduced by NHK Spring Co. Ltd. v. Intri-Plex Technologies
Inc., has effectively swallowed the entirety of the
General Plastic factors in NHK scenarios. That
is, in some recent Board decisions, institution has been declined
in AIA Trial Proceedings on the sole basis that a district
court litigation would reach trial first. Given the AIA has its own
timing mechanism, 35 U.S.C. § 315(b), and plaintiffs seeking
to avoid the PTAB need only go to the WDTX (where NPEs tend to go anyway) to leverage this
development, this is a troublesome development for the system.
In that same post, I pointed out that a request was made to the
Precedential Opinion Panel (POP) to review the Board's
application of NHK (Sand Revolution II LLC., v.
Continental Inter Modal Group – Trucking LLC.
(IPR2019-01393). While that request was denied, the very next day,
the panel in Sand
